PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED,” IN THE SERVICE OR BY REFERENCE TO THIS AGREEMENT THROUGH AN DULY EXECUTED ORDER FORM, EACH CUSTOMER AGREES TO THESE TERMS OF SERVICE. WHERE THESE TERMS CONFLICT WITH ANY ORDER FORM, THE ORDER FORM WILL GOVERN.
These terms of service constitute an agreement by and between Witway Inc., doing business as Wise or Wise Assistant (“WISE”), and you (“ Customer ” or “ you ”), an entity accessing or using any WISE Service, including any duly executed Order Form and any supplements or addendum thereto (this “Agreement”). Acceptance of these terms by physical signatures, electronic signatures, or by clicking “Accepted and Agreed” in the Service, shall constitute a binding agreement by the parties.
(a) “Account” refers to the Service editions and features selected by Customer at the time of enrollment and accepted by WISE.
(b) “Application” refers to the solutions built or customized by Customer using the Service.
(c) “Products” refers to the physical products, devices, software or services which have a virtual representation in the Service which the Customer manages via the Service and may further sell or make available to End Users.
(d) “Customer Data” refers to data in electronic form input or collected through the Service by or from Customer or End User.
(e) “Effective Date” refers to the date of commencement of the Service as listed in Customer’s Account or on their Pricing Schedule.
(f) “End User” shall refer to the entity that purchases and uses subsequent items or information sold by Customer. “Materials” refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by WISE, another customer of the Service, or any other third party.
(g) “Order Form” refers to the documents, that refer to this Agreement, for placing orders hereunder that are duly executed by the parties from time to time, including addenda and supplements thereto.
(h) “Pricing Schedule” refers to the fees and charges that Customer will pay to WISE for the use of the Service.
(i) “Service” refers to WISE’s Influencer Marketing Platform and related professional services. The Service includes a cloud-hosted application, data management platform, application programming interface (API), and data storage, and may also include professional services.
- Service & Payment.
(a) Service. WISE will provide the Service to Customer pursuant to its standard policies and procedures then in effect. Access to Service is available only to those Customer employees or End Users that are paid users under the Account.
(b) Payment. Customer will pay WISE such Service fees as are required in Customer’s Account and described in the Order Form. Fees are due net ten (10) days after the invoice date.
(c) Suspension of Service. If any payment owed by Customer to WISE is thirty (30) days or more overdue, WISE may, without limiting WISE’s other rights and remedies, suspend the Service until such amounts are paid in full, provided WISE gives Customer ten (10) or more days prior notice that Customer’s account is overdue in accordance with section 9(a) of this Agreement.
(d) Overdue Charges. If any amounts invoiced under the terms of this Agreement are not received by WISE by the due date, then such charges will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date the payment was due until the date paid.
(e) Taxes. Customer will be responsible for payment of all applicable taxes or assessments due to local, state, provincial, federal, governmental, and international taxing or regulatory authorities (collectively “Taxes”) relating to the Services. Customer agrees to indemnify and hold WISE harmless against any and all claims or demands made upon WISE or Customer as a result of Customer’s failure to pay Taxes regardless of whether such failure was the result of negligence, gross negligence, willful misconduct, or fraud and regardless of whether the amount due was explicitly indicated on any invoice or similar documentation from WISE. For clarity, WISE is solely responsible for Taxes assessable against WISE based on WISE’s income, property, and employees.
- Service Level Agreement (“SLA”).
WISE will make the Service available to Customer pursuant to this Agreement and according to the terms below:
(a) Service Availability. WISE agrees to provide Customer access to the Service and Customer Data via one or more administrative or user access accounts during the Term of the Agreement. WISE agrees (a) that the Service will be operational at all times (seven (7) days a week and twenty-four (24) hours per day), except in the case of technical problems or due to circumstances reasonably beyond WISE’s control, and (b) to use reasonable efforts to repair the Service should it experience technical problems. Customer shall be solely responsible for any of Customer’s projects managed by the Service.
(b) Loss of Data. Each party to this Agreement assumes the risk of loss associated with loss of data, software, or computer system failure attributable to viruses, worms, or other similar components that may be downloaded during the use of the Service. This provision shall not apply to intentional acts which are designed to lead to Service failure. Under no circumstances shall WISE be responsible for any indirect, incidental, or consequential damages.
(c) Access to Service. Customer agrees that it shall not in any manner permit any person, party, or entity to have access to the Service, except as specifically permitted under this Agreement.
- Materials, Software, & Intellectual Property
(a) Materials. Customer recognizes and agrees that: (i) the Materials, defined as all code, graphics, and content delivered by WISE as part of the Service, are the property of WISE or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Customer does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Customer’s use of the Service.
(b) IP in General. WISE retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant Customer any intellectual property rights in or to the Service or any of its components. Custom code, content and appearances built exclusively by Customer as part of their Application are specifically not considered part of the Service subject to section 4(d) Customer Applications and Code.
(c) Restrictions. Customer will not (i) create derivative works based on the Services, (ii) copy, frame, or mirror any part or content of the Services, other than copying or framing on Customer’s internal intranets or otherwise for Customer’s own internal business purposes, (iii) reverse engineer the Services, or (iv) access the Services to build a competitive product or service.
(d) Customer Applications and Code. Customer, or a third party acting on behalf of Customer, may create applications or program code using the Services as permitted in this Agreement. In such cases, Customer authorizes WISE to host, copy, transmit, display, and adapt such applications and program code, solely as necessary for WISE to provide the Services in accordance with this Agreement. Subject to the above, WISE retains no right, title, or interest from Customer under this Agreement in or to such applications and program code, including any intellectual property rights herein.
(e) Suggestions. WISE will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use and incorporate in the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Service.
- Each Party’s Warranties.
(a) Customer’s Identity. Customer warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law or an individual 18 years or older.
(b) Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
(c) Disclaimers. Except for the express warranties specified in this Section 5, THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND WISE MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing, (i) WISE HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; and (ii) WISE does not warrant that the Service will perform without error or immaterial interruption.
- Limitation of Liability.
IN NO EVENT: (a) WILL WISE’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY AND (b) WILL WISE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 6 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF WISE IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. WITHOUT LIMITATION, THIS AGREEMENT IS BETWEEN CUSTOMER AND WISE ONLY, AND OTHER PARTIES WHO MAY HAVE RECEIVED CUSTOMER DATA SHALL HAVE NO RIGHTS OR REMEDIES AGAINST WISE UNDER THIS AGREEMENT. THE INDEMNIFICATION PROVISIONS OF THE AGREEMENT SHALL APPLY TO ALL CLAIMS AGAINST WISE BY OTHER PARTIES RECEIVING CUSTOMER DATA. If applicable law limits the application of the provisions of this Section 6, the liability of WISE will be limited to the maximum extent permissible.
- Data Management.
(a) Access, Use, & Legal Compulsion. Unless it receives Customer’s prior written consent, WISE: (i) will not access, use, or modify Customer Data other than as necessary to (a) facilitate, repair, or improve upon the Service, including aggregating it in a non-identifiable manner to expand the Service (b) verify valid use of the Service, and
(b) calculate usage for billing purposes; and (ii) will not give any third party access to Customer Data except in the case where it has been aggregated in a non-identifiable manner as part of a subsequent Service. Notwithstanding the foregoing, WISE may disclose Customer Data as required by applicable law or by proper legal or governmental authority. WISE will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
(c) Customer’s Rights. Customer possesses and retains all rights, title, and interest in and to Customer Data, and WISE’s use and possession thereof is solely as Customer’s agent. Customer is solely responsible for data rights management between Customer and End User and other third parties. Customer warrants and agrees that any such data rights management shall comply with the terms of this Section 7. Customer may access and copy any Customer Data under WISE’s management at any time. Customer may allow access to Customer Data by an End User, but only as supported by the Service at the time of access.
(d) Retention & Deletion. WISE will retain Customer Data under WISE’s management until Erased (as defined below) pursuant to this Section 7(c). WISE will Erase (i) any or all copies of Customer Data promptly after Customer’s request, and (ii) all copies of Customer Data no sooner than thirty (30) days and no later than forty-five (45) days after termination of this Agreement except for any non-identified data that is being used to improve upon or inform the functionality and algorithms used in the Service. “Erase” and “Erasure” refer to the destruction of data so that no copy of the data remains or can be accessed or restored in a way that is identifiable with the Customer.
(e) Compliance with Law and Policy. Customer will comply with, and will provide compliance instructions to WISE for all applicable federal, state and local laws and regulations governing the handling of Customer Data. Customer is responsible for the accuracy, quality, and legality of Customer Data.
(f) Confidentiality and Non-Disclosure. The Parties agree that the terms and conditions of the Mutual Non-Disclosure Agreement, executed separately by the Parties, shall be incorporated as part of this Agreement.
- Term & Termination.
(a) Term. This Agreement will continue for the period of time elected by Customer on the Order Form following the Effective Date (a “Term”). Thereafter, this Agreement will renew for subsequent terms (“Terms”) of twelve (12) months at the previously established rates, unless a replacement Pricing Schedule is established which applies specifically to the renewal period or unless either party notifies the other of its intent not to renew sixty (60) or more days before the beginning of the next Term.
(b) Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in thirty (30) days, unless the other party first cures such breach. Either party may terminate the agreement immediately if that breach applies to section 4, 6 or 7(d).
(c) Customer Data. Upon termination for any reason, Customer Data will be managed by WISE according to the terms of section 7 contained herein.
(d) Effects of Termination. The following provisions will survive termination of this Agreement: (i) any obligation of Customer to pay for Service rendered before termination; (ii) Sections 4, 5(c), 6 and 7(c) of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
(a) Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given when hand delivered or three (3) days after being mailed, first class postage prepaid and certified mail, return receipt requested, at the following addresses. For WISE: 4588 17th St, San Francisco, CA 94114. For Customer: to Customer’s contact points as listed in the Order Form or on the Customer Account.
(b) Amendment. WISE may amend this Agreement from time to time by posting an amended version at its website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”) unless Customer first gives WISE written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Terms following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to section 8 above). Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement executed by authorized representatives of each party.
(c) Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
(d) No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an authorized representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
(e) Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
(f) Assignment & Successors. WISE may assign its rights or obligations hereunder without prior written notice or consent of Customer. Customer may assign its rights and obligations hereunder upon prior written consent or without consent to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
(g) Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of California, without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Francisco, California.
(h) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
(i) Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communication. In the event of any conflict between this Agreement and any WISE policy posted online, the terms of this Agreement will govern. However, to the extent of any conflict or inconsistency between provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form or any Pricing Schedule, the terms of such exhibit, Order Form or Pricing Schedule shall prevail. Notwithstanding any language to the contrary herein, no terms or conditions stated in Customer’s purchase order or in any other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
(j) Counterparts. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.